The DOJ's Freedom of Speech Breach

On Monday, news broke that federal officials had secretly seized the phone records of Associated Press reporters. AP President Gary Pruitt reacted with understandable anger, calling the seizure "an overbroad collection of the telephone communications of The Associated Press and its reporters." Is Pruitt right? There are two questions that need to be answered. Was the seizure legal? And, if so, was it justified?

The answer to to the first question, at least based on what we know now, is "probably." A subpoena for records as part of an investigation, as opposed to a search warrant, does not require judicial approval. Intuitively, it may seem as if the First Amendment should shield the press from government investigators. But, at least under current Supreme Court doctrine, this isn't the case. In the 1972 landmark case Branzburg v. Hayes, the Court held that "[t]he First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation." This decision was controversial, and it could be argued that the federal courts should interpret the First Amendment to provide a more robust shield for journalistic activities. Based on what we know now, the subpoena was probably legal under existing law.

Of course, as the majority in Branzburg pointed out, even assuming for the sake of argument that the First Amendment doesn't provide for a journalistic privilege against investigation, legislatures are free to create a statutory journalistic privilege. Some state legislatures have done so. Congress has not, which is worth remembering when considering some of the rather opportunistic outrage from some Republicans about the AP story. Newly minted civil libertarian Darrell Issa, for example, has apparently undergone a remarkable transformation since he voted against legislation offering greater protections to telecommunications companies in 2007. And many a Republican (joined by a disgraceful number of Democrats) didn't object when the Bush administration engaged in warrantless wiretapping that plausibly violated the First Amendment and certainly violated valid congressional statutes.

But, the cynical and hypocritical nature of Republican opposition to the AP spying doesn't make it wrong. And, similarly, even if we assume for the sake of argument that the seizure of phone records was legal in this case, this doesn't justify the policy. The executive branch has the constitutional authority to engage in many things that aren't wise or prudent, and we should expect the Obama administration to do more than the minimum required by the Supreme Court when considering the free speech rights of journalists.

Is the seizure of phone records defensible, then, as an exercise of executive branch power? Based on what we know, it's hard to argue with Pruitt's characterization of the subpoena as unjustified and overbroad. The remarkable scope of the order—taking the records of nearly two dozen phone lines for an extended period of time —requires a particularly compelling justification, given the free speech implications. Any investigation that involves examining the communications of journalists should only request records that are clearly necessary to a very important investigation.

The justification in this case, however—seeking information about a leak that (correctly) gave the CIA credit for foiling the so-called "underwear bombing" in 2009—seems rather trivial. Absent further information, it seems to me that the seizure of phone records was an unwise abuse of discretion on the part of the Department of Justice, even if it was legally authorized. As the AP's response points out, the DOJ did not take "any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation." The inappropriately broad scope of the subpoena is inconsistent with the Department's own procedures.

The seizure of the phone records may not violate the First Amendment as currently understood by the Supreme Court, but it is nonetheless very disturbing as a matter of policy. And it's particularly worrisome that an administration that has sometimes been far too reluctant to prosecute torturers and lawbreakers in the financial industry continues to demonstrate a pattern of excessive aggression in pursuing people who leak information.